May 2010 Archives

On this blog, we spend considerable time discussing what the rights guaranteed in the Bill of Rights and elsewhere in the Constitution really mean. On this day, in particular, we ought to pause and remember that none of them mean anything unless the forces of freedom win the war. To those who gave their lives in the struggle, we owe a debt we can never repay.

Somewhere, Bill Clinton is smiling. One-time special
prosecutor who uncovered the dirty details of the former President's
affair with intern Monica Lewinsky has been engaged in some bad behavior
of his own, according to the Justice Department and Securities and
Exchange Commission.

Correction (~3:18pm): Apparently there are two famous
Kenneth Starrs. The one charged is an investment advisor to the stars,
not the former special prosecutor. Apologies to the other Kenneth Starr
-- and to Bill Clinton if we got his hopes up.

Kenneth Starr, notable Hollywood investment advisor -- not the former
special prosecutor of the same name who detailed the Bill Clinton-Monica
Lewinsky affair -- is being charged with running a $30 million Ponzi
scheme. Complaints have been filed by both the Justice Department and
Securities and Exchange Commission.

The Supreme Court has not rendered an opinion on felon disenfranchisement for a very long time, but Justice O'Connor has.

Yesterday, a panel of the Ninth Circuit issued this opinion in the Arizona case of Harvey v. Brewer. The panel was Justice O'Connor, sitting by designation, Chief Judge Kozinski, and Judge Ikuta. Justice O'Connor's opinion dispatches a number of arguments against Arizona's law. The most creative was a claim that the requirement that a felon pay all his fines before regaining the right to vote violates the Twenty-Fourth Amendment. The what? Answer after the jump.

The Voting Rights Act, which has been the main issue in recent felon disenfranchisement cases, is not directly at issue but is discussed in terms of its relation to the provision of the Fourteenth Amendment expressly authorizing felon disenfranchisement.

A Briton facing jail, or even the possibility of a death sentence,
for his alleged part in redshirt rioting in Bangkok last week, broke
down in tears in court today, saying his incarceration is distressing
his elderly mother.

Claire Bushey has this article in Slate, titled "Why Don't More Women Sue Their Rapists?" The subtitle is "Because the Supreme Court took away part of the Violence Against Women Act." But reality, as usual, is more complicated than that.

In the federal Violence Against Women Act, Congress created a federal civil action in 42 U.S.C. §13981, and it amended the civil rights attorneys' fee statute, 42 U.S.C. §1988, to include those actions among those for which a prevailing plaintiff may be awarded attorneys' fees as well as damages. In United States v. Morrison, 529 U.S. 598 (2000), the Supreme Court decided that Congress had stretched its powers too far, and these matters must be left to the states.

States, of course, do have tort suits for battery, which certainly includes rape. They do not, generally, have a provision for attorneys' fee awards for prevailing plaintiffs. But is that the main obstacle for rape victims who want to sue rapists? No. The main problem remains that most rapists simply don't have enough money to be worth suing. "You can't get blood out of a turnip," as the saying goes. An attorneys' fee award is a scrap of paper if the defendant has nothing to attach.

State legislatures can and should provide for attorneys' fee award for victims of violent crime who recover money judgments against the perpetrators. But don't expect miracles. You still can't get blood out of a turnip.

This post at Volokh Conspiracy may relate to the overcriminalization controversy, depending on what sanctions are applied. VC points us to this story in the Southeast Texas Record (including the picture). The story further points to a PDF file containing a Texas Commission on Environmental Quality memo. TCEQ referred to a county judge a complaint about hunters doing what we have always known bears do. The judge's response is priceless.

We previously noted here that the Supreme Court in Graham v. Florida had engaged in the unusual practice of digging out the facts itself regarding how many juvenile nonkillers had LWOP sentences around the country. We noted here that six of the sentences found by the Court in this manner were federal, raising the question of why SG Elena Kagan had not spoken up to defend them, and that this curious incident required further inquiry.

Today, we got a copy of a letter from Acting SG Katyal to the Court regarding the six cases. Did the Court get it wrong? Well, it's complicated.

Relatively few killers in federal prison are actually there on convictions of murder. Murder, as such, is not a federal offense except in certain enclaves (D.C., military bases, ships at sea ...) and other special situations. The death of the victim usually comes into the case in another way.

For two of the six, the appendix to the letter says the defendant was "[c]harged with and convicted of murder as a RICO predicate act." That is probably sufficient to take these two cases out of the scope of the rule announced in Graham. For two, it says, "[a]long with co-conspirators, participated in the killing of others." It does not say convicted of such a killing, though. Was this fact determined in sentencing proceedings? By whom? To what standard of proof? These are questions still not fully worked out for categorical exclusions in capital cases, where such exclusions have been in place for years. So it is not entirely clear that these two sentences are exempt from the Graham rule.

For the latter two and the other two (who apparently didn't kill anyone), the course of criminal conduct spanned the perpetrators' 18th birthdays. Of the two nonkillers, Ralph Edwin Brazel "turned 18 during the course of the conspiracy, approximately two weeks before his arrest," and Ronald Jourdan Evans "turned 18 during the course of the conspiracy, approximately nine months before he was indicted." At the very least, these judgments are in jeopardy from Graham, whether they actually get overturned or not. Does mere continuation of the conspiracy after the perp blows out his 18 candles remove the protection of the Graham rule if most of the criminal conduct occurred before? That question is not resolved.

Nobody comes out looking good in this. The Court should know better than to engage in ex parte fact gathering and using the results as a basis for making constitutional law. The SG should have known that at least some federal judgments were in jeopardy from an adverse ruling and defended the federal law accordingly.

The California Supreme Court held today that in the particular circumstances of the case of People v. Jacinto, S164011, deportation of a defense witness did not violate the Compulsory Process Clause.

Particularly striking in this case are the facts that the defense team knew the witness was in county jail on unrelated charges and knew deportation was a possibility, yet took no action to prevent deportation or depose the witness before he was deported. On the other hand, there was no misconduct by the prosecution. The DA was not involved at all in the deportation, and the sheriff merely handed the witness over to the immigration authorities upon his release from jail. The decision is unanimous in the result, although two justices disagree with the majority as to whether the sheriff (who runs the jail), should be considered part of the prosecution team.

A Houston judge who declared the procedures surrounding the death
penalty unconstitutional in March, then rescinded his ruling to hear
more information, will stay on the case, a special judge has ruled.

* * *

If Fine rules the same way after hearing arguments on the issue and his
ruling survives appellate review, it will take the death penalty off
the table for John Edward Green. The 25-year-old Green is accused in
the robbery and fatal shooting of Huong Thien Nguyen, 34, on June 16,
2008.

The italicized portion of that statement is about as likely as three feet of snow on the ground in Houston in August.

At Heritage Foundation's Foundry Blog, Hans von Spakovsky and Cully Stimson have this post on the Sestak controversy:

The key distinction between what is legal and what is illegal under
federal law is outlined in an opinion issued by the Office of Legal
Counsel (OLC) at the U.S. Department of Justice in 1980. What is
perfectly legal and what happens all the time in Washington is
individuals being offered jobs because of their past political
activity. Thus, when a new president is elected and takes the oath of
office, he has several thousand patronage jobs to fill in the top ranks
of the executive branch. Those jobs are filled based on a mix of
professional competence and past political activity and support for the
president or his party. That process does not violate federal law.
Thus, if someone in the White House simply offered Sestak a job - like
Secretary of the Navy - and did not tie the offer to anything related
to the Senate race, then, that would arguably constitute business as
usual.

However, what is illegal and not normal practice in
Washington is to promise federal employment to an individual in
exchange for future political activity. 18 U.S.C. § 600 prohibits
public officials from using government-funded jobs or programs to
advance their partisan political interests. The statute makes it
unlawful for anyone to "directly or indirectly, promise[ ] any
employment, position, compensation, contract, appointment, or other
benefit" to any person as a "consideration, favor, or reward for any
political activity or for the support of or opposition to any candidate
or any political party...in connection with any primary election"
(emphasis added). As the OLC opinion says, § 600 "punishes those who
promise federal employment or benefits as an enticement to or reward
for future political activity, but does not prohibit rewards for past
political activity." Future political activity would arguably include
dropping out of a contested primary in order to benefit the White
House-endorsed candidate (here, Senator Specter).

Human Experience Ruling Overturns Conviction: Bob Egelko of the SF Chronicle reports that a Ninth Circuit panel has overturned a habitual criminal's conviction of assaulting a police officer because the judge instructed the jury to put their personal experiences and opinions aside when judging the facts in the case. The Ninth Circuit panel's 2-1 ruling announced yesterday determined that Supreme Court decisions, including those baring race and sex discrimination in jury selection, have established that a defendant has the right to a jury "informed by the full range of human experience." The opinion is by Judge Noonan, joined by Judge Berzon. Like dissenting Judge Sandra Ikuta, we did not know that there was high court precedent supporting that. Looks like another way to get around the AEDPA deference requirement. This is very much like the button case, Carey v. Musladin, in which the Ninth was reversed unanimously. The defendant, Frank Taylor rammed a stolen vehicle into Sacramento police cars before his arrest after a high speed chase. It was Taylor's third strike.

The Supreme Court's decision in Graham v. Florida, that persons short of their 18th birthday cannot be sentenced to life-without-parole for nonhomicides, only directly affected a small number of sentences. The main worry is that the Supreme Court jumped a firebreak between capital and noncapital cases in the imposition of bright-line exclusions, and in the future it may extend this line to homicides or to adults.

Monday, the Court passed on a chance to extend Graham to murderers. It denied certiorari in the case of Scott Dyleski, who was 16 when he bludgeoned Pamela Vitale to death in Lafayette, California (in the east San Francisco Bay area). Bob Egelko has this story in the SF Chron.

Gallup is out with their annual moral issues survey. As usual, it shows that opponents of capital punishment have completely failed to convince the American people that the death penalty is morally unacceptable. This article by Lydia Saad states that 65% of those asked said the death penalty is morally acceptable, while 23% said it was wrong. When we dig deeper into the data, though, we find an additional 7% volunteered the answer "it depends." That answer is the same as "acceptable" for the question actually at issue. No one thinks the death penalty is acceptable for jaywalking. The answer "it depends" means the respondent thinks it is acceptable for the worst crimes, which is all we are talking about, giving a total of 72%. Overall, the results have been quite stable for the last ten years, as these things go.

Tomorrow, the California Supreme Court will release its decision in People v. Jacinto, S164011: "Was defendant denied his constitutional rights to compulsory process and due process when the sheriff's department released a subpoenaed defense witness to federal immigration authorities for deportation prior to defendant's trial?"

The court will also announce a decision in the capital case of Scott Forrest Collins. The judgment was entered December 19, 1996.

Childhood abuse has become the all-purpose excuse for various brands of criminal behavior, from murder to loitering. Usually, although not always, the culprit is some long dead step-father or uncle. It's best, from the defendant's point of view, to be able to blame someone who's no longer around to contest your version of events.

One of the odd things about the typical abuse excuse is that it seems to make no difference how many decades it's been since the "abuse," or the lack of any particular causal connection to the crime. It's never all that clear how your uncle's alcoholic fits created your "compulsion" to embezzle a few thousand from your employer to put a deck on the house.

I suppose it was just a matter of time before the abuse excuse seeped beyond criminal defense work, but I have to confess I was caught off guard by this latest item from pop culture. It seems that childhood abuse caused some TV personality to discover -- in rehab, naturally -- that his father's mistreatment of him 35 years before made him cheat on his movie star wife.

The United States Department of Justice stabbed justice in the back yesterday. It is high time for the attorneys general of the states to take decisive action.

The "fast track" for federal court review of state capital cases was
originally enacted by Congress in 1996 as part of the Antiterrorism and
Effective Death Penalty Act. States that provided counsel for death
row inmates in the second stage of state-court review of their cases
would receive the benefit of a streamlined review in federal court,
including time limits on those courts. However, the original system
had a built-in conflict of interest in that the courts subject to the
constraints were the ones who decided whether a state qualified. They
invariably found reasons not to give the states the promised benefits.

In 2006, in the bill that renewed the Patriot Act, Congress removed the
authority to decide whether a state qualified from the conflicted
courts and gave it to the Attorney General with review by the Court of
Appeals for the D.C. Circuit, the one circuit that does not hear state
habeas cases. The bill also provided that the Attorney General would
promulgate regulations to implement the act.

The Bush Administration took almost two years to produce and finalize
regulations at the very end of that Administration. A federal district
court in California enjoined implementation of the regulations, despite
the fact that the core purpose of the amendment was to remove the
certification issues from the courts that decide habeas cases. The
Obama Justice Department failed to challenge this injunction.

In a notice dated Tuesday, the Justice Department proposed rescinding
the already much-delayed regulations, to be replaced with new
regulations later. This move could further delay, possibly by years,
implementing a law that has already been stalled for 14 years.

It is very clear that there will be no justice from this Justice Department. So what should be done?

Although the act directs USDoJ to promulgates regulations, nothing in the act depends on those regulations or permits a state qualifying for the fast track to be denied the benefits for which it qualifies under law until USDoJ gets around to promulgating them. State attorneys general in states that have adopted qualifying appointment of counsel mechanisms (which is most of them), can and should apply now and not wait any longer for regulations.

If USDoJ stalls or denies certification, go to the D.C. Circuit. The act provides that the court's review is de novo, so in the end it really does not matter what Eric Holder thinks.

I call upon every attorney general in a qualifying state to act immediately. I call upon every candidate for attorney general in a qualifying state to pledge that he will vigorously pursue qualification immediately upon election.

Retired Justice Sandra Day O'Connor has this op-ed in the NYT. It is more balanced than her past efforts in the area, but I am not sure she yet appreciates how the "merit selection" cure can be worse than the disease.

Yesterday, the Supreme Court granted certiorari in the postconviction DNA testing case of Skinner v. Switzer. Mrs. Switzer is the DA for the 31st Judicial District in the Texas Panhandle. ConnectAmarillo.com has this article with a letter from counsel for Mrs. Switzer. It is copied in full after the jump.

WINFIELD, Mo. - Mexican drug smugglers are increasingly peddling a form of ultra-potent heroin that sells for as little as $10 a bag and is so pure it can kill unsuspecting users instantly, sometimes before they even remove the syringe from their veins.

An Associated Press review of drug overdose data shows that so-called "black tar" heroin -- named for its dark, gooey consistency -- and other forms of the drug are contributing to a spike in overdose deaths across the nation and attracting a new generation of users who are caught off guard by its potency.

"We found people who snorted it lying face-down with the straw lying next to them," said Patrick O'Neil, coroner in suburban Chicago's Will County, where annual heroin deaths have nearly tripled -- from 10 to 29 -- since 2006. "It's so potent that we occasionally find the needle in the arm at the death scene."

It is no answer to say legalize and regulate, because addicts will always seek the strongest high regardless of the consequences, which they convince themselves can only happen to other people. Addiction is a death spiral. You can no more regulate it than you can regulate brain cancer. With all respect to my libertarian friends, this is a war we have no moral choice but to fight.

Kent notes that crime fell again in 2009. He does not speculate on why. Astute commenter mjs, however, provides two reasons that ring true: targeted policing and a high rate of incarceration.

We often hear that we need to get "smart on crime." That phrase is almost always a smokescreen -- the camel's nose of a policy favoring mass release of convicts. If getting "smart on crime" actually meant something sensible, it might mean doing what we know works (jail) and avoiding what we know fails (going misty-eyed). We had enough misty eyes in the sixties and seventies, and we all remember what it brought us.

Let me suggest one other reason that crime fell in 2009: Would-be criminals had more to think about, and I don't just mean the slammer. A Second Amendment group notes:

For the third year in a row, violent crime has declined in the United States while increasing numbers of American citizens own firearms and are licensed to carry, a trend that belies predictions of anti-gunners that more guns will result in more crime....

At the same time [as the drop in crime], the...National Instant Check System reports continued increases in the number of background check requests and the National Shooting Sports Foundation has reported increased federal firearms excise tax allocations to state wildlife agencies, an indication that more guns and ammunition are being purchased.

The entire CCRKBA press release is here. Contrary to what defense lawyers so often tell us, criminals actually think about what they're doing. If I were a criminal wannabe, and I thought the chances of getting shot when I broke into your house at 3 a.m. had just gone up, I would think again.

As discussed in the previous post, the four dissenters in Robertson believe that criminal prosecutions must be brought in the name of the sovereign. Do the five in the majority believe the contrary? Not necessarily. The Solicitor General's brief explains why, in the particular circumstances of this case, the result of the case does not necessarily turn on the answer to the question framed by the Court. My previous post assumed for the purpose of explaining Roberts' opinion that the plea bargain would prohibit a prosecution in the name of the government, but that point is disputed.

Suppose that the victim of domestic violence obtains a restraining order, and the perpetrator then violates the order by beating her up again. Suppose further that the government prosecuting office chooses not to proceed with a criminal contempt action. Let's say budget cuts result in that office simply not having enough prosecutors. But, says the DA, you can bring the criminal contempt action yourself.

Does it violate due process of law for the victim rather than a government official to prosecute a criminal case? Not so far. At the time the Constitution was written, this was much more common than it is today, but the practice still exists in some jurisdictions.

But the issue before the Supreme Court in Robertson was not who prosecutes the action but rather in whose name it is prosecuted, a subtle but important difference.

In Giles v. California, 128 S.Ct. 2678 (2008), the Supreme Court gave the "forfeiture by wrongdoing" exception to the Confrontation Clause a narrow interpretation. The fact that a declarant is unavailable for cross-examination because the defendant murdered her does not, by itself, forfeit the defendant's right to confront her as a witness. It is only if he murdered her for the purpose of preventing her testimony that the exception applies.

What about cases decided on appeal before Giles? Shouldn't both the limitation on applying new rules of Teague v. Lane, 489 U.S. 288 (1989) and the AEDPA rule of 28 U.S.C. §2254(d) prevent the overturning of contrary judgments affirmed before Giles?

Yes, says the Ninth Circuit in Ponce v. Felker, No. 08-73186. "At the time of Petitioner's appeal, it was neither contrary to, nor an unreasonable application of, clearly established federal law [for] the California appellate courts to rule that the forfeiture did not require proof of an intent to make the witness unavailable. Accordingly, we affirm." The panel was Judges B. Fletcher, Pregerson, and Graber, two of whom are about as pro-defendant as judges get. So it is encouraging to see them apply AEPDA correctly.

In this particular case, the judgment could also have been affirmed on a straight Crawford analysis by finding that the statements in question were not "testimonial." The state and federal trial courts both held that, but the Ninth passed on the issue.

In this video on YouTube, a frog (not Kermit) encourages people to read. Specifically, he wants them to read the controversial Arizona immigration statute. By the end of the video, he seems a bit discouraged.

The FBI has released the preliminary data for the 2009 Crime in the United States report:

Preliminary figures indicate that, as a whole, law
enforcement agencies throughout the Nation reported a decrease of 5.5
percent in the number of violent crimes brought to their
attention for 2009 when compared with figures reported for 2008. The
violent crime category includes murder, forcible rape, robbery, and
aggravated assault. The number of property crimes in the United States
in 2009 decreased 4.9 percent when compared with data from
2008. Property crimes include burglary, larceny-theft, and motor vehicle
theft. Arson is also a property crime, but data for arson are not
included in property crime totals. Figures for 2009 indicate that arson
decreased 10.4 percent when compared to 2008 figures.

In Graham v. Florida, the Supreme Court was not satisfied with the information provided by the parties regarding how many persons are in prison around the country for life-without-parole sentences imposed for nonhomicide crimes. "Florida further criticizes this study because the authors were unable to obtain complete information on some States and because the study was not peer reviewed. See Brief for Respondent 40. The State does not, however, provide any data of its own. Although in the first instance it is for the litigants to provide data to aid the Court, we have been able to supplement the study's findings."

The supplemental information is letters from correctional authorities in response to requests from the Court's librarians. In the opinion, they are designated "available in Clerk of Court's case file." Well, they really should be on the Internet. The Clerk has graciously provided them to CJLF, and here they are.

Connecticut Attorney General Richard Blumenthal is running for the US Senate. He is a well-liked and popular figure in his state. But it has come out that he lied about his military service. He claimed that he served in Vietnam, but did no such thing. He was in the military during the Vietnam years -- the Marine Corps Reserve, after having received draft deferments while in college -- but he never went overseas.

This all came out in the New York Times last week. Blumenthal admitted to "mis-speaking," whatever that means, but would not apologize until yesterday. On Sunday, he sent an e-mail to a Connecticut newspaper saying in part, "At times when I have sought to honor veterans, I have not been as clear or precise as I should have been about my service in the Marine Corps Reserves. I have firmly and clearly expressed regret and taken responsibility for my words."

This will not do. Blumenthal's failure did not lie in insufficient clarity or precision while attempting to honor others; that is defense-lawyer talk. His failure lay in telling a false story in order to make himself look better.

Blumenthal should end his campaign. Indeed he should do more: He should resign as Attorney General. Public confidence in the rectitude and honesty of the state's chief law enforcement officer is essential. Without it, there are bound to be questions about the integrity and, perhaps, the political shading of what has been going on in Blumenthal's office.

This is not a partisan suggestion. The state is overwhelmingly Democratic and the Senate seat is likely to remain in Democratic hands one way or the other. This is especially so now that the Republicans appear to have put forward political novice Linda McMahon, whose principal "qualifications" are (1) that she's married to the head of the august World Wrestling Federation, and (2) that she has no known conservative views.

When the case of United States v. Marcus was before the Second Circuit, Judge Sotomayor wrote in a concurring opinion:

Judge Wesley and I concur with the per curiam opinion because its conclusions are compelled by the current law of this circuit. We write separately because we believe this Court's precedent with regard to plain-error review of ex post
facto violations does not fully align with the principles inhering in
the Supreme Court's recent applications of plain-error review.

"Marcus was convicted of engaging in forced labor and sex trafficking between January 1999 and October 2001. On appeal, he pointed out for the first time that the federal statutes he violated did not become law until October 2000." (Emphasis added.)

Not exactly a great moment in lawyering on the part of defense counsel. Of course, if counsel had pointed this out before trial, it likely would have been easy for the prosecution to get a conviction anyway by limiting its evidence to post-10/00 acts. So, should defendant get the windfall of a reversal for a problem that is as much his fault as the prosecution's?

The Second Circuit's "any possibility, no matter how unlikely" standard, however, would require finding a "plain error" in a case where the evidence supporting a conviction consisted of, say, a few days of preenactment conduct along with several continuous years of identical postenactment conduct. Given the tiny risk that the jury would have based its conviction upon those few preenactment days alone, a refusal to recognize such an error as a "plain error" (and to set aside the verdict) is most unlikely to cast serious doubt on the "fairness," "integrity," or "public reputation" of the judicial system.

In United States v. O'Brien, the syllabus summarizes the holding: "Held: The fact that a firearm was a machine gun is an element to be proved to the jury beyond a reasonable doubt, not a sentencing factor to be proved to the judge at sentencing." Doug Berman has this post at SL&P.

The Supreme Court dismissed as improvidently granted the case of Robertson v. United States ex rel. Watson, the case on the victim being able to prosecute criminally a violation of a domestic violence restraining order. When the case first came up, CJLF decided not to file an amicus brief because quirks in the case led us to believe it would not be as significant as it first appeared. Apparently the Court belatedly came to the same conclusion.

Chief Justice Roberts, joined by Justices Scalia, Kennedy, and Sotomayor, dissent. I do not expect to see that lineup very often.

The Supreme Court today sent back to the lower federal courts the case of Jefferson v. Upton, a capital habeas case so old that it is governed by the pre-1996 rules for how a federal court should treat state-court findings.

Accordingly, we believe it necessary for the lower courts to determine on remand whether the state court's factual findings warrant a presumption of correctness, and to conduct any further proceedings as may be appropriate in light of their resolution of that issue. See Townsend, supra, at 313-319; Keeney v. Tamayo-Reyes, 504 U. S. 1 (1992). In so holding, we express no opinion as to whether Jefferson's Sixth Amendment rights were violated assuming the state court's factual findings to be true.

In dissent, Justice Scalia notes the unusual nature of the disposition:

Generally speaking, we have no power to set aside the duly entered judgment of a lower federal court unless we find it to have been in error. More specifically, except where there has been an intervening legal development (such as a subsequently announced opinion of ours) that might alter the judgment below, we cannot grant a petition for certiorari, vacate the judgment below, and remand the case (GVR) simply to obtain a re-do. Webster v. Cooper, 558 U. S. ___, ___ (2009) (SCALIA, J., dissenting) (slip op., at 3). Yet today the Court vacates the judgment of the Eleventh Circuit on the basis of an error that court did not commit, with respect to a statutory issue that had never previously been raised, and remands for more extensive consideration of a new argument that might affect the judgment. Under the taxonomy of our increasingly unprincipled GVR practice, this creature is of the same genus as the "Summary Remand for a More Extensive Opinion than Petitioner Requested" (SRMEOPR). Id., at ___ (slip op., at 4). But it is a distinctly odious species,deserving of its own name: Summary Remand to Ponder a Point Raised Neither Here nor Below (SRPPRNHB).

Today's decision of the D.C. Circuit in the Afghanistan habeas case, Al Maqaleh v. Gates, is a good example of the difficulty faced by a lower court when a higher court fails to truly follow its own precedent but also does not overrule it. The earlier case is still a precedent, but it does not mean what it seems to say and what most people understood it to mean, because the later opinion came to a different result on facts that should have come within the earlier precedent.

Justice Robert Jackson's classic opinion in Johnson v. Eisentrager, 339 U.S. 763 (1950) was long understood to stand for the proposition that an alien enemy captured and detained outside the U.S. had no constitutional right to have his detention reviewed by a federal civilian court on habeas corpus. But Boumediene v. Bush, 128 S. Ct. 2229 (2008) did find such a right in cases coming within those parameters, without overruling Eisentrager. So where does the Eisentrager precedent end and the Boumediene precedent begin?

The D.C. Circuit rejected positions of both parties that it characterized as "extreme." The government said Boumediene was limited to Guantanamo Bay, and the petitioners said it extended to every place under U.S. Government control.

If the simple answers are wrong, what do we have? Yes, the dreaded three-factor test:

Today's News Scan notes this article by Rick Cleveland in the Jackson, Mississippi Clarion-Ledger regarding the execution of Paul Woodward in Mississippi. The whole article is well worth reading. Here is how it ends:

New on the U.S. Supreme Court docket is application 09A1121, Rod R. Blagojevich and Robert Blagojevich, Applicants v. United States. The entries to date:

May 18 2010 Application (09A1121) for a stay of trial proceedings, submitted to Justice Stevens.

May 21 2010 Response requested - Due May 28, 2010.

So Justice Stevens did not dismiss this application immediately, nor has he yet referred it to the full court. I expect he will refer it, though, if it appears to have any merit after receiving the response. He is most unlikely to actually grant the stay on his own.

Mississippi Executes Two Killers: The state of Mississippi carried out executions of two rapist/murderers on Wednesday and Thursday according to this Associated Press story. Gerald James Holland died Thursday for the 1986 murder of Krystal King on the girl's fifteenth birthday. Before she died Krystal was raped beaten and stabbed. An autopsy indicated that she died from asphyxiation from a ligature around her neck and clothing stuffed down her throat. On Wednesday, Paul Everett Woodward was executed for the 1986 rape and murder of 25-year-old Rhonda Crane. Rick Cleveland of the Clarion Ledger reports that as Crane was driving to meet her family for a camping trip, Woodward used a logging truck to block her car on Mississippi hwy 29. He then kidnapped her at gunpoint, took her to a secluded area where she was raped and shot. Crane's father found her body the next day. The AP story also reports that on Thursday, Virginia executed double-murderer Darick Demorris Walker.

SF DA Accused of Hiding Problems: Jaxon Van Derbeken of the SF Chronicle reports that a Superior Court Judge declared in a ruling Thursday that District Attorney Kamala Harris' office had hidden information about corruption in the city's drug lab. According to the story, the county's top drug prosecutor sent a memo to the "highest levels of the district attorney's office" about a lab technician with an undisclosed criminal record accused of skimming cocaine and intentionally sabotaging the drug analysis unit. As a result, the district attorney's office has dismissed over 600 drug cases since the scandal was reported last February.

The DC Circuit, trying to make sense of the relatively recent Supreme Court case of Boumediene v. Bush and the post-WW II precedent of Johnson v. Eisentrager, distinguished but not overruled in Boumediene, has held that habeas corpus for enemy detainees does not extend to Afghanistan. AP story is here.

The simple answer to the puzzle is that Justice Jackson was completely correct in Eisentrager, and Boumediene was wrongly decided, but of course that answer is not an option for the Court of Appeals.

Although, as the defense bar will tell you, we are the world's "incarceration nation" bent on locking up most of the population just to be mean, I am happy to report that tonight, we have for the moment, and in a small way, relented.

Zillionaire actress Lindsay Lohan had been ordered to appear in court to answer for various probation violations. (She was convicted in 2007 of driving around town juiced up on booze and cocaine). She didn't show, and earlier today a warrant was issued for her arrest. But now a $100,000 bond has been posted and the warrant has been recalled.

The compassionate among us can breath a sigh of relief. And it's not just that this overbearing, jack-booted warrant is no longer out there. It's that she had just cause for her non-appearance. As ABC News reports:

According to Lohan's lawyer, Shawn Chapman Holley, Lohan had good reason for not showing up to court: She's stuck in France at the Cannes Film Festival...

That's it, ladies and gentlemen. Ms. Lohan couldn't make her court date in Los Angeles because she's stuck in France.

It has been 15 years now since the people of San Francisco effectively abolished capital punishment on a local basis by electing DAs who never seek it, not even for people who murder police officers or children. So how has the City by the Bay done in its homicide rate, relative to the rest of the state?

Until the late 1990s, the murder rate of SF generally tracked that of the state as a whole. It tended to be somewhat above the statewide rate, and there was a spike in 92-93. For 89-98, San Francisco was on average 12.5% above the state as a whole. From 1999 to 2003, San Francisco pulled away from the statewide rate and was persistently higher, 28.8% higher on average. For 2004-2008, San Francisco's homicide rate jumped while the state's declined. The SF rate is a whopping 84% higher for the 5 year range and more than double in 2007 and 2008. Preliminary data for 2009 do show a substantially larger drop for SF than for the state as a whole, but not enough to bring it back into the ratio it had circa 1990.

What should we make of the long term trend diverging from the state several years after the change in policy and persisting and expanding as time goes on? The trend is consistent with my hypothesis of how deterrence works. That is, it is a general awareness among the crime-prone whether the jurisdiction does or does not have the death penalty and, if it does, whether it does or does not enforce it. Many studies in the area measure only the recency effect, measuring change shortly after a publicized execution, for example. I think the long-term effect is the more important one.

Of course, we can't draw definite conclusions from this one example. There are way too many uncontrolled variables. This is more of an illustration than a proof. Still, the piece fits in the overall puzzle.

I have repeatedly criticized our terrorism policy as incoherent, see e.g., here, here, and here. I must now confess error. It's not so much incoherent as flat-out chaotic.

This afternoon we learn that the Director of National Intelligence, Dennis Blair, is, after a very brief stay on the job, on the way out, probably in 24 hours. MSNBC says:

Blair's tenure as the overseer of the nation's intelligence agencies was marked by turf battles with CIA Director Leon Panetta and controversial public comments in the wake of the Christmas Day airliner bombing attempt.

Blair's resignation comes in the wake of a scathing Senate Intelligence Committee report regarding intelligence failures and the Christmas Day bombing attempt. That report was highly critical of the DNI's National Counterrorism Center.

The evidence of chaos is everywhere. This is not going to end happily.

Death penalty opponents like to write and cite reports claiming that the death penalty is vastly more expensive than life-without-parole. These reports tend to ignore or downplay the high medical cost of prisoners near the end of their natural lives.

Marisa Lagos reports for the SF Chron, "As California struggles to pay for social services for its poorest residents, it spends hundreds of millions of dollars a year on health care for a small group of sick inmates - in one case $1 million during a dying inmate's final year, according to a state audit released Tuesday."

Sen. Mark Leno (D-Frisco) is pushing "medical parole" as a way to take this cost out of the corrections budget. That doesn't eliminate the cost to government generally, of course. It just moves it to Medicaid* or to Social Security.

For ~700 inmates in the Big Q, a different kind of early release program could eliminate these old-age costs altogether, if properly implemented.

The California Democratic Party is calling for abolition of the death penalty, defying conventional political wisdom and raising an issue that its candidate for governor might prefer to avoid.

Democratic leaders have previously passed resolutions opposing capital punishment, but the party says its records indicate it has never enshrined the position in its platform - the formal statement of its principles - until this year.

Those of us who fight in the trenches have been painfully aware for many years that the Democratic leaders in the California Legislature have been doing everything they can to block the enforcement of a law that the people overwhelmingly favor. So now we'll give them a point for candor by putting it in the platform. That may help to explain to regular folks that, in California, a vote for any Democrat for the Legislature is a vote for the murderers, regardless of the individual candidate's stand.

Will that actually cost them any seats? Probably not in the current gerrymandered state. Next year, though, we get a new apportionment through a new commission. If that really does produce competitive districts, as its backers planned, the will of the people may finally break through.

I like to keep an eye on Doug Berman's blog, Sentencing Law & Policy, because I want to know what the other side is thinking. Generally this can be done by reading the editorials and news coverage (to the minimal extent there's a difference) in the New York Times, but the comments on SL&P tend to be more, shall we say, frank.

Today's SL&P feature focuses on whether this week's primary results cast any light on the role criminal law and sentencing issues might play in November's election, Should sentencing fans be excited about throwing the bums out of DC? In particular, the question is whether the movement for smaller government might be good tidings for those who see our country as "incarceration nation." The theory is that imprisoning criminals is an offshoot of the overcontrolling, overspending and overborrowing government that, for example, the Tea Party movement so strongly opposes.

It isn't, of course. Imprisoning criminals is a long-recognized and essential aspect of sovereign power, accepted from the Founding as part of a properly functioning state. As I show below, the current "Big Goverment" gloss on incarcerating criminals is no more than a trendy disguise for the pre-existing and phony argument that earned punishment is vengeance.

Don Thompson of AG reports on a debate in the California Attorney General race. Bear in mind that this is for the Democratic nomination in the 9th most liberal state in country, as measured by Obama percentage vote in 2008:

San Francisco District
Attorney Kamala Harris was the only Democrat to say she opposes the
death penalty Tuesday as six Democratic candidates for attorney general
sought to distinguish themselves during an hourlong debate.

"I'm
personally opposed, but I would follow the law," said Harris. She noted
that previous attorneys general, including incumbent Jerry Brown, have
taken a similar stance.

Former Facebook privacy officer Chris
Kelly and four other Democrats seeking to replace Brown said they would
work to fix what they say is a broken system, in which it often takes
decades to execute condemned inmates.

Candidates put lots of money into polling, focus groups, etc., so the stances they take often give us a good indication of where the people are. All six promising to enforce the death penalty in the Democratic primary in California is a good sign. The only one admitting personal opposition is the one whose record wouldn't allow a denial, which is also a good sign.

In social science research, there are always variables you can't control, so you try to structure your study so that the things you can't control are random with respect to the variables you are trying to measure. Randomness plus large enough sample size plus a lucky rabbit's foot means these uncontrollables don't affect your results. You hope.

BBC reports on a British Science Museum study where the data are gathered through a survey. That is common in research, but we always have to worry that survey respondents sometimes lie to surveyors.

What is the variable of interest? Lying.*

So how do the researchers know their results aren't skewed by lying participants.**

The BBC story doesn't say, and I can't find a link to the full study. Maybe they have some clever way. They certainly can't assume that lying is random with respect to the variable of interest, though.

The researchers might say, "Nothing's wrong, I'm fine." That is the number one lie told by women and number two for men. If the participants are telling the truth about not telling the truth, that is.

A third resentencing has already been done, as Cal. App. anticipated Graham.

In the case of Antonio Nunez, overturned in April 2009 by the Court of
Appeal for the 4th District of California, the then 14-year-old Los
Angeles gang member used a semi-automatic weapon to kidnap an immigrant
smuggler, demand $100,000 and a kilogram of cocaine as ransom, then fire
on pursuing police officers and passing drivers in a failed bid to
escape when the payoff was intercepted.

Monday's decisions in the Graham and Comstock cases represent the latest edition in the Court's jurisprudence (albeit indirectly) on mental health law. What is fascinating about this area of the law is how much it changes how we think about the criminal-civil divide. Conventional wisdom holds that the nexus between mental illness and criminal justice shifted during the era of deinstitutionalization of the 1960s and 1970s. This is surely true on many levels but it's often asserted as a straightforward matter: with the emptying of state psychiatric hospitals the criminal justice system has simply absorbed those who have trouble controlling their behavior. That is, institutionalization has remained steady - all that's changed is what institution is doing the heavy lifting. And while there's some merit behind that idea it obscures the larger picture. What has really changed during the past fifty years is how we think about crime, punishment and responsibility.

The title of this post is the caption for a George Will article in my daily WaPo opinion email. On the WaPo website, the article is titled, "Slow learners at the 9th Circuit."

The 9th U.S. Circuit Court of Appeals is a stimulus package for the
Supreme Court, which would rather not have one. The 9th Circuit, often
in error but never in doubt, provides the Supreme Court with steady
work: Over the past half-century, the 9th has been reversed almost 11
times per Supreme Court term, more than any other circuit court. This
week, the Supreme Court should spank it again and ask: Is it too much to
ask that you pay some attention to our precedents?

The case that draws Will's ire has to do with school choice, but the general point is even more valid as applied to criminal law. So, the first priority in dealing with this rogue court is to fill vacancies with people who will bring it back toward the center.

This article examines the reasons offered by seven New York governors in justification of their decisions to commute death sentences in 159 cases between 1920 and 1970. In doing so, it scrutinizes the common assertion that, in marked contrast to contemporary death penalty cases, merciful considerations once were bountiful in sparing condemned offenders from execution. An examination of the New York governors' reasons for granting clemency and the legal context within which their decisions were made suggests that mercy accounted for few death sentence commutations during this time period and that other considerations predominated. To the extent that the New York experience resembles that of other states historically, the analysis suggests that the comparatively infrequent use of executive clemency in contemporary capital cases may owe more to the significant differences in death penalty laws and their administration during the different eras than to a diminished role for mercy.

Twenty years ago in California, we had to put an initiative on the ballot and amend the state constitution just to establish that the strict rules of evidence, including the hearsay rule, do not apply at preliminary hearings, something accepted as a matter of course elsewhere. Today we have an odd little opinion from the Ninth Circuit confirming that this doesn't violate the Confrontation Clause of the United States Constitution. The clause applies to trials. A state defendant has no federal right to a preliminary hearing at all, so it certainly stands to reason he has no federal right to confront witnesses at a purely optional procedure.

What is odd is the route the case took to the Ninth. Defendant Peterson was charged with two felonies and several misdemeanors. The felony charges required either a grand jury indictment or a preliminary hearing. (Misdemeanors require neither.) The state introduced hearsay evidence at the prelim. The magistrate found probable cause, and Peterson was held for trial. But then the felony counts were dismissed on other grounds. Peterson was convicted of some misdemeanor counts, but any gripes about the prelim. are moot on those counts, as no prelim. was required.

So Peterson sues the state, the county, and the AG in a federal civil action. The trial court dismissed the state and AG and granted judgment on the pleadings to the county. The Ninth does not discuss issues of res judicata, federalism, or the Heck v. Humphrey rule in Peterson v. California, No. 09-15633. It goes straight to the merits and upholds the initiative. The decision is correct on the merits. The implicit conclusion that they could properly reach the merits may be correct, but I would have expected some discussion of these knotty issues.

Over the weekend, AP reported, "The White House on Saturday asked Bill Clinton's presidential library to
speed the release of more than 160,000 pages of paper, including
e-mail, in its possession from Supreme Court nominee Elena Kagan's
tenure as a Clinton adviser in the 1990s."

She was in the White House Counsel's office when President Clinton signed the Antiterrorism and Effective Death Penalty Act of 1996. Did she write anything on whether the President should sign it and what his signing statement should say?

This statute takes up a disproportionate amount of the Supreme Court's docket, due to the chronic evasions and violations of it by federal judges who resent having their power curtailed, so it is quite important what the nominee thinks of it. The President's signing statement endorsed the nonsense that the "deference" standard of §2254(d) did not really mean what everyone understood it to mean at the time the bill was being debated, with the implication that it would be unconstitutional if it did.

Did Associate Counsel Kagan have any input into that particular piece of drivel? I would really like to know that.

Below the radar in yesterday's news coverage was a proper discussion of international case law in a Supreme Court opinion by Justice Kennedy.

No, not Graham v. Florida. The case was Abbott v. Abbott, and it involved a treaty, the International Child Abduction Remedies Act. When interpreting a treaty, the opinions of courts in other countries interpreting the same document are certainly a proper part of the discussion.

This Court's conclusion that ne exeat rights are rights of custody is further informed by the views of other contracting states. In interpreting any treaty, "[t]he 'opinions of our sister signatories' . . . are 'entitled to considerable weight.'" El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U. S. 155, 176 (1999) (quoting Air France v. Saks, 470 U. S. 392, 404 (1985)). The principle applies with special force here, for Congress has directed that "uniform international interpretation of the Convention" is part of the Convention's framework. See §11601(b)(3)(B).

On the other hand, when interpreting the Eighth Amendment to the Constitution of the United States, the recent* opinions of courts of other countries have no conceivable relevance to what the Supreme Court is supposed to be doing. Let us assume that "cruel and unusual" may mean something different than it meant in 1791. The same Congress that proposed the Eighth Amendment also prescribed whipping, and that is certainly unusual in America today. Even so, those words must have reference to American social mores. What Europe thinks is utterly irrelevant.

The Federalist Society has a website to collect news and commentary on the Supreme Court nomination of Elena Kagan. From their "About" page:

The Federalist Society is pleased to announce the launch of a new website, SCOTUSReport.com. The purpose of this site is to collect in one place the key news and documents, as well as commentary from across the legal, political and philosophical spectrum, regarding the upcoming Supreme Court nomination. We have regularly been asked by the media and others whether there is any such web-based resource. To date there has not been. So we decided to launch one, both in order to meet this demand and, in light of the public attention focused on these issues during Supreme Court nominations, to use the occasion to promote widespread public debate and education about the role of courts in our constitutional democracy.

The NYT's "Room for Debate" feature has a short piece by yours truly on Graham v. Florida and two pieces by people on the other side, Marc Mauer and Paul Butler. Here is the final paragraph from my piece:

Chop by chop, judicial activism slowly removes the
important decisions of society from the democratic process and carries
them off to the marble palace of the unaccountable judiciary. Whether
one agrees or disagrees with the sentence in this case or even with the
rule made in this case, we have all lost a bit of our constitutional
right of self-government today.

Butler makes the case that Senators who believe in justice should be extremely skeptical of anyone nominated to the courts by President Obama, probe deeply their views on criminal law, and not accept evasions or platitudes for answers. That isn't the point he meant to make, of course. He actually wrote this:

This case also sends a message that President Obama knows how to pick
justices with his same progressive values. Liberals had some concern
about where Justice Sotomayor, the former prosecutor, would be on
criminal justice issues, but in this case she signed a separate opinion
with the two most liberal members of the court. That opinion basically
says "Clarence Thomas, shame on you!"

So maybe Ms. Kagan's liberal critics should chill out some. The
president, when he interviews prospective Supreme Court nominees, seems
to be doing a fine job of either speaking persuasively or listening
deeply.

Hans Bader has this piece on examiner.com focusing on the [mis]use, again, of "international opinion" for the interpretation of the Constitution of the United States.

The death penalty is generally thought to serve three functions: deterrence, retribution, and incapacitation. On incapacitation, opponents say that the death penalty is not necessary because life imprisonment guarantees a killer will not kill again.

This year may see the execution of two killers who disprove the latter point. Life imprisonment is not 100% effective as incapacitation. In today's orders list, the Supreme Court denied an original habeas petition from Rogelio Cannady, who killed again within prison. AP has this story. Also in the final stages of litigation is Jeffrey Landrigan, who killed again after escaping from prison.

With no judicial record, Elena Kagan's tenure as Solicitor General takes on greater importance as the Senate considers her nomination to the Supreme Court.

One must be careful not to read too much into SG briefs, though. The SG is an advocate, and an advocate's job is to make the best case for the client's position. The client decides what the goals of representation are; the lawyer only advises on that point. The SG has more say on what position to take than in the usual attorney-client relationship, but even so we can not lightly assume that every decision made is the one she would have made if unfettered.

So, if the court grants certiorari on the petition of a federal defendant, the SG almost always defends the conviction. The federal prosecutions don't tell us that much.

The SG also appears frequently as amicus curiae in cases from the states. Here the SG has far more leeway. The SG can just pass on these cases or can enter them. Most often, the SG enters to prevent a precedent that will cause problems for federal prosecutions.

As noted here, SG Kagan failed to argue against a bright-line rule against LWOP for all juveniles in nonhomicide cases, even though federal judgments were at stake. Are there any other curious omissions?

Berghuis v. Smith involved a criminal procedure issue that arises in federal and state cases alike -- how you determine whether a jury selection process complies with the "fair cross-section requirement" of the Sixth Amendment. That would seem to be a prime candidate for an SG amicus. But there wasn't one.

The SG did not file in any of the capital cases. In Wood v. Allen and Beard v. Kindler, one can make a good case that the issues only arise in state cases, so there is a diminished federal interest. That case is harder to make for Smith v. Spisak, though. An expansive interpretation of the Mills rule regarding instructing juries on mitigating factors can have an impact on federal death penalty prosecutions as well.

The Supreme Court decided Graham v. Florida today, categorically abolishing LWOP for non-homicide offenders under 18. The opinion was authored by Justice Kennedy. For those familiar with Kennedy's work in Roper v. Simmons and Kennedy v. Louisiana, neither the result nor the Court's mode of analysis will come as a surprise. There will be a temptation to view it as just the latest in Kennedy's high-minded meandering. Resist that temptation, and be alarmed -- very alarmed.

The bad news is that the opinion is another exercise in one-size fits-all jurisprudence: According to the Court, there is not one single person under 18 whose non-homicidal (for the moment) behavior, no matter how violent and sadistic, nor how often repeated, who can be reliably found by a judge or jury to merit LWOP. And even if some random court might for good reason reach that outcome, there is too much possibility that a different court in a different case might go astray ("astray" being defined by Justice Kennedy's view of the world). So LWOP must be taken off the table intoto to protect us from ourselves.

Justice Kennedy wrote that the appropriate analysis is that used in Atkins, Roper and Kennedy. Although acknowledging that there was arguably a national consensus on the availability of the sentence for juvenile non-homicide (44 states, the District of Columbia and the federal government authorize the sentence) the Court found that argument "incomplete and unavailing." Rather, actual sentencing practices "discloses a consensus against its use," finding that there are 129 juvenile non-homicide offenders serving LWOP, and 77 of those are in Florida.

You don't need to be a rocket scientist to see where this is headed in some future death penalty case: "Although there is arguably a national consensus in favor of capital punishment, a review of 'actual sentencing practices' discloses 'a consensus against its use,' since a majority of all executions after Gregg have occurred in only three states (Texas, Virginia and Oklahoma), and a majority of states have had a mere handful of executions, if any. Therefore..."

I think readers will be able to write the conclusion for themselves.

In other words, precisely because we are a humane people reluctant to use the death penalty except in the cases that most cry out for it, we are on the road, paved by Justice Kennedy's one-way-ratchet analysis, to not being able to use it at all. And that is the real news from this morning's opinion.

The lone case granted, on the State of Rhode Island's petition, is Wall v. Kholi, No. 09-868. The Question Presented, as framed by the RI AG, is:

Does a state court sentence-reduction motion consisting of a plea for leniency constitute an "application for State post-conviction or other collateral review," 28 U.S.C. § 2244(d)(2), thus tolling the Anti-Terrorism and Effective Death Penalty Act's one-year limitations period for a state prisoner to file a federal habeas corpus petition, an issue as to which there is a 3-2 circuit split?

Today's decision in Graham v. Florida is, obviously, from Florida, but the decision also negates six federal sentences and effectively declares unconstitutional an Act of Congress as applied in those cases. See slip op. at 11-13. When such a result is possible, the Solicitor General of the United States generally appears as amicus curiae to defend the federal law.

The companion Sullivan case, involving issues of procedural default in habeas, has been "dismissed as improvidently granted," a phrase more literally true in this case than usual.

Will Sullivan get the benefit of the Graham decision, despite the dismissal of his present petition? My initial impression is that I think he will, but I will have more to say on that later when I have had a chance to review the Florida procedural law.

As noted previously here, on March 2, I participated in a "mock trial" of the American death penalty in London. Still photos by Andrew Aitchison are here. The event was video recorded by the Guardian, London's very left wing newspaper. They have been sitting on the video ever since.

The Guardian has finally posted a heavily edited version of the video here. The edited version does include portions of the sterling performances of Paul Cassell and Robert Blecker, and those are certainly worth watching.

The Guardian decided to cut out entirely the testimony on the race bias question by Nicholas Trenticosta of the Center for Equal Justice and by yours truly.

They did find space, though, for the closing bloviating by Geoffrey Robertson, QC, who was supposed to be a judge giving directions to the jury but who actually delivered a closing argument for one side. Our barrister advised us afterward that if this had been a real trial, that would have been a clear case of reversible error.

The "verdict" was predetermined by the composition of the audience, as noted in my pre-event post, but our team was pleased to get as many votes as we did under the circumstances.

Discussions are still underway to get the full video. I hope to be able to show you why the Guardian did not want the Trenticosta-Scheidegger debate to see the light of day.

"Holder Hasn't Read Arizona Law he Criticized": Stephen Dinan of The Washington Times, reports that Attorney General Eric H. Holder Jr. admitted he had not read Arizona's new immigration law he criticized last weekend, and was only going by what by what he read in newspapers and saw on television. "I've just expressed concerns on the basis of what I've heard about the law. But I'm not in position to say at this point, not having read the law, not having the chance to interact with people are doing the review, exactly what my position is," Holder told the House Judiciary Committee. This past weekend Holder told NBC's "Meet the Press" that the Arizona law "has the possibility of leading to racial profiling" and is "unfortunate." He also questioned whether the law was unconstitutional because it tried to assume powers that are reserved for the federal government. Texas Republican, Ted Poe, told the attorney general, "It's hard for me to understand how you would have concerns about something being unconstitutional if you haven't even read the law." At President Obama's request, Holder is conducting a review of the law to see if the federal government should challenge it in court. He plans to have read the law by the time his staff briefs him on their conclusions.Modifying Miranda for Terrorists: Charles Krauthammer, has a Washington Post editorial, suggesting that the 1984 "public safety" exception to issuing Miranda warnings (New York v. Quarles) be modified for terrorists such as confessed Times Square bomber Faisal Shahzad. Krauthammer stresses the importance of not Mirandizing terrorists until an interrogation is complete. Surprisingly, Attorney General Eric Holder is embracing the anti-terrorism measure. Holder said this on ABC: "If we are going to have a system that is capable of dealing in a public safety context with this new threat (international terrorism), I think we have to give serious consideration to at least modifying that public safety exception." Holder further explains that the public safety exception was originally based on a robbery back in '80s, but now we're dealing with international terrorists, which is why we need to be "perhaps modifying the rules that interrogators have" to be "more consistent with the threat that we now face." Krauthammer insists that terrorists be treated as enemy combatants, rather than as ordinary criminals, and the only way to do that is by modifying Miranda.

Court Claim's Governor Distorted Evidence in Parole Case: SF Chronicle writer Bob Egelko reports on a state appeals court ruling claiming Gov. Arnold Schwarzenegger distorted the evidence to justify his decision to deny the parole of a San Francisco murderer Joseph Calderon, who killed a Mission District security guard in 1993. Wednesday's ruling by the First District Court of Appeals in San Francisco reinstated the Board of Parole Hearings' June 2008 decision granting parole to Calderon. The parole board's 2008 decision parole was based on acceptance of responsibility for his crimes, good behaved in prison, participation in treatment, and favorable mental health evaluations. The board also noted that Calderon dropped out his gang many years ago. The court alleged that Governor Schwarzenegger lacked evidence to support his denial of parole. In 2008, the governor overturned board grants of parole nearly 60% of the time, and in 2009, more than 70% of the time. The Governor based his decision on Calderon's lack of "full insight" into his crimes, a sporadic participation in rehabilitation programs and continued criminal behavior in prison. The Governor can appeal the District Court's ruling to the California Supreme Court.

This morning I was on KPBS radio in San Diego on their "These Days" program for an episode titled "Society and the Death Penalty." The other participants were Virginia Lewis of USD and Paul Kaplan of Cal. State SD. In theory, the program was going to be a discussion rather than a debate, and the participants were not going to be advocates for one side. That never works for this very contentious topic. It did become a debate, and I was outnumbered. Even so, I think I held up my end pretty well. You can listen for yourself at the audio link on the page.

"Frank Spisak, the notorious cross-dressing, Hitler-loving triple murderer, is set to be executed on Feb. 17, 2011," reports Reginald Fields for the Cleveland Plain Dealer.

Meanwhile, "Ohio executed a hitchhiker Thursday who admitted to killing one motorist
who gave him a ride and shooting two others during a three-week string
of shootings that terrorized the Cincinnati area in 1983," reports Julie Carr Smyth for AP. The U.S. Supreme Court's green light for the green mile order is here. Justices Stevens and Breyer dissented. Jon Craig has this story on the Michael Beuke execution for the Cincinnati Enquirer.

Also by Jon Craig is this story on the modern-era record number of executions in Ohio this year. Is this an "ominous record"? I don't think so. These are pent up cases where justice has been denied for a long time, and when the dam finally breaks, you get a big gush. The problem is that so many cases were needlessly delayed, not that the delays are finally coming to an end for an unusual number of cases in one year.

Perry Bacon reports in the WaPo that the nomination of Goodwin Liu to the Notorious Ninth was voted out of committee on a 12-7 party-line vote.

This nomination should be the test case on judicial nomination filibusters. Are Republicans going to unilaterally disarm and never filibuster nominees regardless of how extreme their views, while Democrats can and do filibuster more moderate nominees when Republicans have the White House?

To reiterate, Liu attacked Alito's nomination specifically on the issue of the death penalty, even though Alito actually had a moderate record and voted for the defendant in 40% of the cases. My analysis of the cases is here. From Liu's paper, it is evident that he thinks at least 90% of the cases should have been overturned. He is the one who is far out of the mainstream, further than anyone President Bush nominated.

Over at Volokh Conspiracy, John Elwood has this post about the Georgia capital case of Jefferson v. Upton. The case is on the conference list for the seventh time tomorrow (see docket), and Elwood thinks a summary reversal is brewing.

The claim in the case is ineffective assistance in the penalty phase, which is not at all unusual. Indeed, capital habeas petitions that do not make that claim are rare. It is unusual, though, to have a lengthy dissent by Judge Carnes, who is definitely not a bleeding heart.

Elwood also notes, "Right off the bat you know this is not your usual capital case in that
the defendant's middle name is neither 'Wayne' nor 'Dale,' which
standing alone is probably enough to support a claim of actual
innocence."

Today's News Scan includes a quote from the U.S. Attorney General saying something that has become common but which does not become any more correct with repetition. Mr. Holder is quoted as saying, "We don't want to get tough on crime, we want to get smart on crime...."

But tough is smart. Back in the Great Society, people we thought were experts told us that softer sentencing combined with social programs to address the "root causes" would bring down crime rates. Instead, they went through the roof. When we tightened up, crime came down. These changes were not entirely the result of sentencing policy; other factors were also at work. But sentencing was a big part of it.

Swallowing the Great Society nonsense was one of the stupidest things America has done in modern history. To forget that experience and condemn ourselves to repeat it would be beyond stupid. And yet we still have people in high positions telling us it would be "smart."

Two weeks after the Supreme Court said it could stay, the Mojave Cross war memorial has been ripped out of and stolen from its rocky embankment in the California desert.

Thieves sawed through the welded bolts securing the 8-foot pipe-and-concrete cross to its platform atop Sunrise Rock in the Mojave National Preserve late Sunday or early Monday. Park employees discovered the cross missing Monday morning, said Linda Slater, a spokeswoman for the National Park Service.

Authorities have made no arrests in the case, but attorneys who spent years fighting to keep the memorial within the national preserve say they think the culprits were motivated by the Supreme Court's April 28 decision, which allowed the cross to remain for now within the federal preserve.

The Mojave Cross case was not a criminal matter and therefore not the subject of this blog, when it was decided or now. But theft is a subject of this blog, and so is the rule of law.

It doesn't matter if you think dope should be legal, as some sensible people do. It isn't, so you can't smoke it. It doesn't matter if you think abortions should be outlawed, as many people of conscience do. They're legal, so you can't bomb the abortion clinic. It doesn't matter if you think the death penalty is wrong. It's part of the law, so you can't stop it by trying to intimidate physicians who help its administration.

We have a social contract that calls on us to abide by the law until and unless we change it bypersuading a majority of our fellow citizens to do so. This is highly unsatisfactory to those of us, like me, who think, for example, that our present national legislature is nuts. But the alternative is a return to the law of the jungle.

Those who stole the Mojave Cross should be dealt a severe punishment. It shouldn't have anything to do with religion. It should have a lot to do with the wrongfulness of thievery, and even more to do with respect for the rule of law.

Holder Supports Oakland Anti-Gang Effort: Henry Lee, a San Francisco Chronicle staff writer, reports on U.S. Attorney General Eric Holder's support of efforts to combat gang violence in Oakland. Holder said that putting a dent in gang and youth violence is a priority for the Obama administration. "We don't want to get tough on crime, we want to get smart on crime, and that necessarily means building relationships and building trust between law enforcement and the communities that law enforcement is supposed to serve," Holder said. Holder supports many initiatives to resist gang violence, saying they are among "comprehensive, holistic solutions to the problems that affect our community." The city's proposed injunction would prohibit 19 alleged gang members from associating with one another in a 100-block area near the Berkeley and Emeryville borders. The proposed injunction is being challenged in court by the ACLU.

Pakistani Taliban may go on Terror List: AP writer Mathew Lee reports on the possibility that the U.S. government may add the Pakistani Taliban to a terrorism blacklist prompted by the failed Times Square car bombing. The U.S. has been focused on on the Pakistani Taliban for a while, but it has not been included on the terrorism list because officials had not determined it met the criteria. Adding or removing a group from the list is a lengthy and thorough process that follows strict guidelines. Adding the Pakistani Taliban to the terrorism list would impose travel and financial sanctions on members of the group, as well as making it a crime for Americans to offer it any material support. Yesterday, five senators sent a letter to Secretary of State, Hillary Clinton, asking that the group be added to the list. "The Pakistani Taliban is a murderous organization dedicated to killing civilians, harming U.S. interests in the region, and has even taken credit for terrorist acts committed on U.S. soil," the senators wrote. "Designating the Pakistani Taliban as a foreign terrorist organization would be an effective means of curtailing support for their terrorist activities and pressuring other groups to withdraw their logistical, financial and political support for this terrorist organization," they said. The State Department is considering the senators' request.

Sex Offenders Challenge Conviction: Reporter, Joseph Serna of The Los Angeles Times, reports on three men who were found guilty and sentenced to six years in prison in 2005 for the sexual assault of an unconscious 16-year-old girl and videotaping her. They have asked the California Supreme Court to overturn their convictions. The three rapists, Gregory Haidl, 24, the son of a former Orange County Assistant Sheriff; Kyle Nachreiner, 25; and Keith Spann, also 25, have served part of their sentences and are now free on parole. In a petition for review, counsel argues that the trial judge did not give his client a fair trial because he excluded evidence regarding the victim's sexual history as required by California's rape shield law. The attorney also argues that because the jury found the three, who were 17 when they committed the rape, not guilty on an assault with a deadly weapon charge, they should have been tried as juveniles and spared from being registered as sex offenders. "Men who are convicted of preying on women who are too intoxicated to say 'no' are sexual predators," said Orange County district attorney's spokeswoman Susan Schroeder. "The public has the right to know who they are, where they live and what they did." The California Supreme Court has 60 days to decided whether to hear the case.

Yesterday I argued that recent events have brought into focus what we should have known before: Miranda is a period piece. It was in step with the liberal excesses of the 1960's, but has become an anachronism, and a dangerous one at that. Over the past 44 years, its benefits in curbing the sometimes abusive police behavior of its time have dimmed, while its costs, in inviting dangerous suspects to stonewall, have increased. Nowhere is this more obvious than in our current conundrums about when or whether terror suspects like the Times Square bomber should be given the famous warnings or, if not, how long the warnings should be delayed.

Today former Attorney General Michael Mukasey chimes in. Here are the first paragraphs of his piece this morning in the Wall Street Journal:

Some good news from the attempted car bombing in Times Square on May 1 is that--at the relatively small cost of disappointment to Broadway theater-goers--it teaches valuable lessons to help deal with Islamist terrorism. The bad news is that those lessons should already have been learned.

One such lesson has to do with intelligence gathering. Because our enemies in this struggle do not occupy a particular country or location, intelligence is our only tool for frustrating their plans and locating and targeting their leaders. But as was the case with Umar Faruk Abdulmutallab, who tried to detonate a bomb aboard an airplane over Detroit last Christmas Day, principal emphasis was placed on assuring that any statements Faisal Shahzad made could be used against him rather than simply designating him an unlawful enemy combatant and assuring that we obtained and exploited any information he had.

On Sunday, Attorney General Eric Holder said that in regard to terrorism investigations he supports "modifying" the Miranda law that requires law enforcement officials to inform suspects of their rights to silence and counsel. But his approach--extension of the "public safety exemption" to terror investigations--is both parsimonious and problematic. The public safety exemption allows a delay in Miranda warnings until an imminent threat to public safety--e.g., a loaded gun somewhere in a public place that might be found by a child--has been neutralized. In terror cases it is impossible to determine when all necessary intelligence, which in any event might not relate to an imminent threat, has been learned.

ACLU Fights Oakland Gang Injunction: San Francisco Chronicle columnist Chip Johnson writes today about the injunction proposed by the Oakland City Attorney to declare members of the violent North Oakland Gang a public nuisance. Like similar injunctions in many other U.S. cities, the one proposed in Oakland would prohibit identified members of the gang from gathering in an area they have occupied as their "turf". Members who violate the injunction could be cited searched and questioned by police. Any contraband or weapons uncovered would result in criminal charges. The ACLU has initiated a legal challenging to the injunction, arguing that it would threaten the gang members' rights of free expression, association and movement. Johnson's piece notes that, with the injunction, Oakland officials are trying to assure those rights to law abiding residents, who are intimidated, threatened and often victimized by the gang members. Manuel La Fontaine, the organizer of a group called Stop the Injunction claims that the injunction would allow police to conduct stops based on racial profiling. There have been 33 homicides in Oakland so far this year.

Other States Copying Arizona: Christian Science Monitor writer Daniel B. Wood reports that in spite of widely reported criticism of Arizona's new law, 10 other states are now considering adopting laws to criminalize illegal immigration. Colorado gubernatorial candidate Scott McInnis, a Republican, has vowed to follow Arizona's lead. The piece notes that Oklahoma and South Carolina are considering tougher sanctions on illegals and immigration bills have also been introduced in Idaho, Utah, Missouri, Texas, North Carolina, Maryland, Minnesota and Colorado. Not mentioned by Wood is the fact that the two leading candidates in California's GOP gubernatorial primary have also vowed to push for tougher sanctions on illegals. According to Wood, three national polls have shown wide support for the Arizona law in particular and crackdowns on illegals in general. The President's recent mocking of the Arizona law and tacit acknowledgment that federal action on immigration is not feasible in the short term, have encouraged proponents of new anti-illegal immigrant laws. "We should expect this trend of state-level activity to accelerate this year in the absence of federal legislation on immigration," said Villanova PolySci Professor Catherine Wilson.

Heritage Foundation has this post on the Kagan nomination, including this statement by former Attorney General (and CJLF advisor) Edwin Meese:

First and foremost, any nominee to a lifetime appointment to the United States Supreme Court must demonstrate a thorough fidelity to apply the Constitution as it was written, rather than as they would like to re-write it. Given Solicitor General Kagan's complete lack of judicial experience, and, for that matter, very limited litigation experience, Senators must not be rushed in their deliberative process. Because they have no prior judicial opinions to look to, Senators must conduct a more searching inquiry to determine if Kagan will decide cases based upon what is required by the Constitution as it is actually written, or whether she will rule based upon her own policy preferences.

Though Ms. Kagan has not written extensively on the role of a judge, the little she has written is troubling. In a law review article, she expressed agreement with the idea that the Court primarily exists to look out for the "despised and disadvantaged." The problem with this view--which sounds remarkably similar to President Obama's frequent appeals to judges ruling on grounds other than law-is that it allows judges to favor whichever particular client they view as "despised and disadvantaged." The judiciary is not to favor any one particular group, but to secure justice equally for all through impartial application of the Constitution and laws. Senators should vigorously question Ms. Kagan about such statements to determine whether she is truly committed to the rule of law. Nothing less should be expected from anyone appointed to a life-tenured position as one of the final arbiters of justice in our country.

The controversial case of Henry Skinner has been "relisted" for a fourth consideration by the U.S. Supreme Court at its conference Thursday. A decision on whether to take the case will probably be announced in the Monday orders list, unless they relist it for a fifth consideration.

During the 1990s a movement was afoot in the mental health field to change the nomenclature of the therapist-patient relationship. Advocates urged a movement away from "patient" to the term "client" and then, dissatisfied with that, argued for the term "mental health consumer." Somehow the new terminology never stuck with most doctors and therapists: it seemed to equate the therapist-patient relationship with the consumption of goods rather than signifying the professional nature of the relationship. After all, we're not talking about movie popcorn here. As it's often said, words do matter. Which is why a new study in the current issue of the International Journal of Offender Therapy and Comparative Criminology seems oddly titled: Sex Offender Treatment: Consumer Satisfaction and Engagement in Therapy.

Our national debate now features the clash between two urgent forces. One is the need to obtain timely intelligence to prevent mass murder at the hands of terrorists. Three times in President Obama's brief tenure, there have been terrorist strikes on American soil: the Hassan massacre at Ft. Hood, the Christmas Day airline bomber in Detroit, and the Times Square bomber. In the first of these, 13 people met their fate. In the latter two, we got lucky. But luck is no substitute for a national security policy. And luck doesn't hold forever.

The second force, which we created, is the force of legal precedent that essentially invites captured killers and would-be killers -- terrorists and others -- to clam up. This is the 1966 Miranda decision. Miranda requires the police to tell suspects in custody that they have the right to remain silent and to the services of an attorney during questioning. This is a virtual invitation to stonewall. Every now and again, the suspect will decide to talk anyway. But banking on that serendipity is foolhardy. If the authorities violate Miranda, the suspect's statement is automatically suppressed, even if voluntarily given, seriously complicating the chances of obtaining a deserved conviction.

In recent days, the Attorney General has pointed out that there is an "emergency exception" to the Miranda rule, one that allows the police to question a suspect when public safety is in immediate danger. Apparently, the roughly three hour-long unMirandized questioning of the Times Square bomber was undertaken in the hope that the courts will see fit to apply this exception. Maybe they will, but it's hardly a sure thing. In the case in which the exception was created, New York v. Quarles, 467 U.S. 649 (1984), the unMirandized questioning lasted less than a minute. Again, the Administration appears to be banking on a combination of (1) hope and (2) the good sense of people more serious than it is.

That is irresponsible as a matter of security policy and mistaken as a matter of Constitutional law. Following the break, I describe what needs to be done.

That's the question of the day, along with should she get confirmed. My Stanford classmate and political analyst Paul Mirengoff sees two possible grounds to oppose her -- that she is unqualified, and that she is a hide-bound, doctrinaire liberal.

The qualifications question is particularly interesting, given that she was, after all, at age 43, dean of the Harvard Law School. Paul notes:

Depending on the standard one applies, Kagan's lack of judging experience and substantial real world legal experience, coupled with the apparent absence of major legal scholarship, might support a conclusion that she is not sufficiently well-qualified to serve on the nation's highest court. As Ed Whelan says, "Kagan may well have less experience relevant to the work of being a justice than any justice in the last five decades or more."

My guess is that, when all is said and done, reasonable Republican Senators will be able to conclude either that Kagan is minimally qualified or that she is not. Based on my knowledge of the current record, I tend to believe that Kagan possesses the minimum qualifications needed for the job.

Read the entire analysis here. Paul concludes, and tentatively I agree, that while there may well be reasonable grounds to oppose her on the merits, there are insufficient grounds to launch a filibuster -- an extraordinary move for a Supreme Court nomination -- and thus deny her an up-or-down vote.

President Obama won the election and is entitled to his choice, subject to Senate confirmation. The bad news is that the last election had consequences. The good news is that the next one will too.

Federal District Judge Lewis Kaplan today denied the motion of alleged embassy bomber Ahmed Ghailani to dismiss the indictment for "outrageous government conduct."

If, as Ghailani claims, he was tortured in violation of the Due Process Clause, he may
have remedies. For the reasons set forth above, however, those remedies do not include dismissal
of the indictment. The defendant's motion to dismiss the indictment on the grounds of allegedly
outrageous government conduct in violation of his Fifth Amendment due process right is denied.

Ghailani's motion to dismiss on speedy trial grounds, on which CJLF filed an amicus brief, is still pending.

Murderer Pleads to Avoid DP: The California woman facing charges for the kidnapping, rape, and murder of an 8-year-old in March 2009 pled guilty this morning, according to this story in the Stockton Record. Prior to her negotiated guilty plea, San Joaquin County prosecutors had intended to seek the death penalty for Melissa Huckaby, whose own daughter was a playmate of the victim, Sandra Cantu. Several days after the little girl disappeared, farm workers found her body stuffed in a suitcase linked to Huckaby. Because California has a death penalty, which this murderer wanted to avoid, San Joaquin County will skip a trial and appeals which would have cost taxpayers millions. One may ask whether the cost of the life without parole sentence that 29-year-old Huckaby will serve would exceed that of the cost of her execution if the killing had occurred in Virginia, where such cases are completed in less than half the time that it takes in California.

Arizona Law a Political Plus?: San Francisco Chronicle columnist Debra Sanders authored this piece discussing the politics surrounding Arizona's adoption of the federal law on illegal immigration. She notes that a recent New York Times/CBS poll found that 51% support the law as it is currently written while 9% think that it does not go far enough. More interesting is her analysis of how the two political parties have reacted to this law compared to previous immigration reform proposals. Senator John McCain supported "pathway to citizenship" legislation. Many believed that would help him garner Latino voters for his presidential bid, but he received just 31% ...13% fewer than George W. Bush. Senator Obama helped kill the "pathway to citizenship bill" and 67% of Latino voters chose him for President. In 2003, Democrats in the California Legislature passed a bill to give driver's licenses to illegals. After Gov. Gray Davis signed the bill into law, voters revolted and he was recalled. "In a craven act of cowardice, the Legislature quickly voted to rescind the bill it had passed." The piece also notes that the Obama Administration is deporting 5% more illegals than under Bush and that powerful New York Democrat Senator Chuck Schumer is pushing for a national ID card. GOP politico Hector Barajas said of Democrats, "They'll attend an immigration march and march with you, but on the back end, they'll say that they want more agents to deport you. It's become a racket."

In the final round of selecting Justice Stevens' successor, the rumored short list came down to one candidate with a good record on criminal law, two with awful records, and one with no record at all. The President chose door number four.

Will the confirmation process give us a lighthouse in the fog? Based on recent experience, the answer is almost surely no. The reason I hedge with "almost" is that one of the major critics of the practice of nominees shedding no light is now the nominee.

The WaPo has this document under the heading, "Views on death penalty, obscenity." Um, not really. It is a questionnaire from the SG confirmation, in which she says nothing about her views on the death penalty but affirms that as the advocate for the U.S. she will argue its position as expressed in legislation.

Numerous news outlets are reporting that President Obama has chosen Solicitor General Elena Kagan, 50, to replace retiring Justice John Paul Stevens.

I don't know that much about Kagan and have never met her. What little I do know is this: She is said to have a relatively high regard for executive power (perhaps related to her service in Clinton's White House Counsel's Office); she vociferously opposed military recruitment at Harvard, where she was Dean of the Law School, on the stated grounds that President Clinton's "don't-ask-don't-tell" policy towards gays was unfair; she is regarded by some conservatives as having a relatively open mind and taking law more-or-less seriously; and she has been rumored to be gay herself, a rumor denied by the White House and for which there is no evidence of which I am aware.

Ms. Kagan has no judicial experience and very little courtroom experience of any kind. She is the first non-judge to be nominated since Richard Nixon nominated Powell and Rehnquist. She would be the fourth woman on the Court. There may be significant recusal issues in the early part of her tenure, given her involvement in cases in which the United States is a party. If she has a view of criminal law, I don't know about it.

Off the seat of my pants, I would guess she'll be a standard-issue, Ivy League liberal no worse, or not much worse, than Justice Stevens. If she says anything enlightening at her confirmation hearing, I'll be flabbergasted.

UPDATE: Scott Johnson has more on Kagan here, http://www.powerlineblog.com/archives/2010/05/026264.php. Scott reminds us that Kagan did sign the amicus brief challenging the Solomon Amendment, which was designed by Congress to deter universities receiving federal funds from barring military recuiters. The brief's main argument might charitably be characterized as absurd, accountng for its 8-0 rejection by the Supreme Court (Justice Alito did not participate (hat tip to federalist)). Ordinarily, an amicus brief would be looked upon as being filed in a representative capacity, but it seems clear that this one reflected Kagan's personal beliefs.

Ed Whelan has added thoughts on Kagan, http://bench.nationalreview.com/post/?q=NzlkMzU1ODg0N2VmYWEwN2E0YzFmOTQwNTdkYjY1MjA=. Particularly noteworthy are Ed's observations that Kagan's nomination is in jarring contrast to the President's populist rhetoric about wanting someone with "experience in everyday life," whatever that might mean. As a former White House aide and Harvard Dean, Kagan might have many qualities, but being the person next to you in the grocery store line is not one of them.

Second, Ed points out that some of Kagan's little "real world" experience in the law was as a paid adviser to none other than Goldman Sachs. That would probably make a conservative nominee radioactive, but I doubt it will hurt Kagan.

My last observation for now is that, in one way, the White House played this beautifully. They leaked this on Friday, in all likelihood by way of a trial balloon to see if any skeletons in the closet would emerge over the weekend. Apparently none did. Second, the White House had previously leaked lists mentioning somewhat edgier candidates like Sidney Thomas, Harold Koh and Deval Patrick. I suspect this was designed to make moderates and conservatives breathe a "sigh of relief" that it is "only" Elena Kagan, thus deflating the potential intensity of resistance to her.

It's really hard to fight, much less win, a war if you are unwilling to so much as name the enemy. So notes Scott Johnson in today's entry on Powerline. Take special note of the White House version of things:

In the new issue of the Weekly Standard, Steve Hayes and Tom Joscelyn document the lengths to which President Obama and other public officials have gone to make fools of themselves commenting on the attempted terrorist attack by Faisal Shahzad in Times Square. They note, for example, that attempted bombing is referred to on the White House Web site as "the Times Square incident." (Is anyone in the White House familiar with The Ox-Bow Incident? You might want to change that to "the Times Square happening" or "the Times Square event.")

Hayes and Joscelyn have much more. Treating the Times Square happening as the third such terrorist attack in the Age of Obama, they show how the public relations foolishness fits into a recurring pattern: "The most striking thing about all three attacks is not what we heard, but what we haven't heard. There has been very little talk about the global war that the Obama administration sometimes acknowledges we are fighting and virtually nothing about what motivates our enemy: radical Islam." Is Shahzad a Muslim? I hadn't heard that.

Readers here generally are not fooled by the ideological chant (see, e.g., any three days' worth of comments on Sentencing Law and Policy), that prosecutions take root in the desire to scourge the lower class, and/or are driven by racism, hate and revenge.

We also see the occasional charge that this prosecution or that was brought for political reasons. Usually, this is so much defense lawyer baloney. Honesty compels me to acknowledge, however, that every now and again, the charge is true, e.g., the Duke non-rape scandal.

BAGHDAD -- Opening arguments began today in the court-martial of a Navy SEAL from Blue Island who is accused in the abuse of an Iraqi prisoner suspected of masterminding the killings in 2004 of four U.S. private security contractors.

Petty Officer 1st Class Julio Huertas, wearing his blue Navy uniform, appeared in a military courtroom at the Victory Base Camp outside Baghdad to answer charges of dereliction of duty and impeding an official investigation. He has pleaded not guilty.

Huertas, 28, is the first of three Navy SEALs to go on trial in connection with the alleged assault of the Iraqi prisoner, Ahmed Hashim Abed.

Abed was arrested last September on charges of masterminding the grisly killings of four Blackwater security guards whose burned corpses were dragged through the Iraqi city of Fallujah west of Baghdad. Two of the guards' bodies were hung from a bridge over the Euphrates River in the insurgent attack.

I am happy to report that, as of Thursday, the last of the three defendants was acquitted.

The title of this post is a heading in this article by Frank Newport at the Gallup Poll. The heading is a bit of an overstatement. Actually, 42% said they wanted a nominee to make the Supreme Court more conservative, 24% status quo, and 27% more liberal. I can predict with confidence that the 42% will be disappointed. Not sure about the other two groups.

One encouraging sign is that identity politics got a huge thumbs down, with 2/3 to 4/5 saying it doesn't matter if the nominee belongs to various groups.

SF Sanctuary Policy Gutted: Rachel Gordon of the San Francisco Chronicle reports that the city's sanctuary policy, which had shielded illegal alien habitual offenders from deportation, has been weakened by the Department of Homeland Security's automated reporting system. Starting next month, the fingerprints of everyone booked into San Francisco County Jail will be automatically forwarded to the State Department of Justice and federal immigration authorities for review. "Essentially, this guts San Francisco's sanctuary ordinance in terms of criminal justice," said Sheriff Michael Hennessey. The story notes that San Francisco has struggled to balance its desire to be a beacon for illegal immigrants with the reality that many of the illegals protected by the sanctuary policy commit other crimes as well.

Co-eds Subdue Attacker: Five female students disarmed and subdued a 45-year-old man attacking a co-ed at Husson University in Bangor, Maine yesterday. A story in the Bangor Daily News by Nok-Noi Ricker reports that Horst Wolk violated a protection order when he attacked his yet unnamed 34-year-old victim in the University parking lot as she arrived to attend a nursing class. According to the story, Wolk rammed the woman's car after she pulled into a parking space and then attacked her with a knife. Witnessing the attack, five female students, including one who had just completed a self-defense class, jumped to the victim's defense, forcing Wolk to drop the knife then wrestling him to the ground. This AP story reports that when police arrived, the co-eds were holding the attacker on the ground while other women stood by, ready to jump in, if necessary. The injured victim, was treated at a local hospital and released. Wolk, who has been charged with attempted murder and aggravated assault, is being held on $25,000 bail. Which seems a bit low for these charges.

James Oliphant and David Savage cover the Shahzad/Miranda controversy for the LAT:

A senior FBI official said Wednesday that the agents talked to Shahzad
for about three or four hours under the [public safety] exception beginning late Monday
night and into the early hours of Tuesday. They then decided to read
him his Miranda rights. At that point, the officials said, Shahzad
continued to talk despite the warning.

The source, who asked not to be identified because the case is still
active, added, "You have to make a decision on a case-by-case basis.
Have you accomplished the public safety component? And you also have to
make determinations on whether he's talking or not talking. So there is
no hard-and-fast rule. But it has to be reasonable. You can't utilize it
indefinitely.''

Still, investigators were not compelled to read Shahzad his rights.

"Miranda is not a constitutional requirement, like giving someone a
lawyer," said Paul Cassell, a University of Utah law professor and
former federal judge. "People who grew up watching cop shows on TV think
it is more than that, but it's not."

The Supreme Court held in 2004 that law enforcement officers are not
constitutionally required to issue Miranda warnings. The risk, however,
is that incriminating statements, such as a confession, are not later
admissible, potentially weakening the government's case.

Jess Bravin has this informative but depressing story regarding how judges get on the Supreme Court shortlist. Having former clerks in key places in the Administration is a significant factor.

"It's not what you know; it's who you know," cynics have long maintained. The depressing reality is that there is a lot of truth in that statement.

I was genuinely astonished when the news broke that Ninth Circuit Judge Sidney Thomas was under consideration. I could not think of a single good reason why. "Geographical diversity" has been mentioned, but a very large number of judges fit that bill. Thomas's travesty of an opinion in the Summerlin case, discussed here, makes him an easy political target and makes untenable any claim that he is a great intellect. So how did he make it to the very select list of persons to be personally interviewed by the President? According to Bravin, "Yet although he is a lifelong Montanan, he has his own connection on
Pennsylvania Avenue: Former clerk Ian Bassin now works in the White
House counsel's office."

The influence of former clerks in this process is undesirable for multiple reasons. First, it gives an advantage to federal appellate judges as opposed to other candidates, especially state supreme court judges. Many states wisely have their appellate judges assisted by career staff research attorneys rather than wet-behind-the-ears recent graduates. Even for those that do emulate the federal system, the state clerkship is less prestigious and thus its alumni are less likely to land the Administration positions from which they can lobby for their former bosses. The Supreme Court presently has too many former federal judges (9) and too few former state judges (0), and it doesn't look like this is going to get better any time soon.

Second, even among federal circuit judges, the fact that one judge's clerk rather than another's landed the key administration spot is irrelevant to merit. It simply ought not be a factor. But apparently it is.

NYC Bomb Suspect Nearly Escapes for Dubai: Scott Shane of The New York Times reported on the security lapses that allowed the Times Square terrorist suspect, Faisal Shahzad, to board a plane for Dubai nearly 24 hours after investigators learned that he might be connected to the attempted bombing. Though Shahzad was apprehended before he could escape, the government and the Emirates airline had two significant lapses in their security response. First, an FBI surveillance team lost track of Shahzad, which allowed him to get to the airport. Second, workers at Emirates failed to act on an electronic message notifying all carriers to check the no-fly list for Shahzad's name and passport number. Ultimately Shahzad was able to make a flight reservation and pay for his ticket in cash several hours before his departure. This raised concerns and questions about why and how this suspect was allowed to board the plane. Officials say changes in security procedures may limit the chances of a repeat failure to check an updated no-fly list. The TSA is taking control over checking passenger manifests against the no-fly list under its Secure Flight Program. Mayor Michael Bloomberg was reluctant to criticize those in charge of airport security, added: "Clearly the guy wasn't on the plane and shouldn't have been. We got lucky."Who is this NYC Terrorist Suspect?: The New York Times published an article by Mark Mazzetti, Sabrina Tavernise, and William Rashbaum that provided an inside look at Faisal Shahzad, Times Square suspected terrorist. Shahzad, 30-year-old naturalized U.S. citizen from Pakistan, lived in Bridgeport Connecticut. He was charged Tuesday with several terrorism related crimes, including attempted use of WMD. Also, 7-8 people have been arrested in Pakistan that may have been connected to the bomb plot or Shahzad. Shahzad has provided investigators with valuable intelligence. He's admitted to driving the car bomb into Times Square and receiving bomb-making training in Pakistan. Shahzad spent five months last year in Pakistan and returned early February of this year. Investigators are looking into possible connections with the Pakistani Taliban, although Shahzad has admitted to acting alone. Shahzad has waived his right to a speedy arraignment which suggests he is continuing to provide valuable information to investigators.

The findings of this study confirm that many individuals witha
serious mental illness spend time in jail and are frequentlyrearrested.
The characteristics of individuals who have elevatedrisks
of misdemeanor arrests and of spending time in jail associatedwith
these arrests are somewhat different than those of individualswho
have elevated risks of felony arrests. Being male, beinghomeless,
having an involuntary psychiatric evaluation, andnot having
outpatient mental health treatment in the previousquarter
independently increased the odds of subsequent misdemeanorarrests
and of additional days in jail. On the other hand, beingblack,
being in a younger age group, having a nonpsychotic diagnosis,and
having a co-occurring substance use disorder diagnosis wereall
independently associated with felony arrests. An involuntarypsychiatric
evaluation and the lack of outpatient mental healthservices
in the previous quarter also increased the odds ofa felony
arrest, but the associations were not nearly as strongas
they were for misdemeanor arrests. Because felonies typicallyresult
in longer incarcerations, it is not surprising that,with
the exception of psychiatric diagnosis, all variables thatincreased
the risk of felony arrest also increased the riskof
additional days in jail.

Overall, the lengths of jail stays were found to be strikinglysimilar
among persons with a diagnosis of a serious mental illnessand
those without such a diagnosis. Regardless of mental illnessstatus,
at least 50% of persons were released from jail within30
days of entering. Furthermore, nearly half (49%) of thosewith
serious mental illnesses had relatively unpredictable releases.Many
such releases occurred after shorter incarcerations, typicallywith
little or no notice, and an additional 8% left the jailfor
state sentences or incarceration in a state or other countyfacility.

Reader federalist sent me this story, which has now made its way to Sentencing Law and Policy. Here are the first two paragraphs, and I swear I'm not making this up:

By the time the trumpets sound, the candles have been lit and the salmon platters garnished. Harald V, King of Norway, enters the room, and 200 guests stand to greet him. Then a chorus of 30 men and women, each wearing a blue police uniform, launches into a spirited rendition of "We Are the World." This isn't cabaret night at Oslo's Royal Palace. It's a gala to inaugurate Halden Fengsel, Norway's newest prison.

Ten years and 1.5 billion Norwegian kroner ($252 million) in the making, Halden is spread over 75 acres (30 hectares) of gently sloping forest in southeastern Norway. The facility boasts amenities like a sound studio, jogging trails and a freestanding two-bedroom house where inmates can host their families during overnight visits. Unlike many American prisons, the air isn't tinged with the smell of sweat and urine. Instead, the scent of orange sorbet emanates from the "kitchen laboratory" where inmates take cooking courses. "In the Norwegian prison system, there's a focus on human rights and respect," says Are Hoidal, the prison's governor. "We don't see any of this as unusual."

All I can say is, if orange sorbet is a human right, can chocolate mousse be far behind?

A University of Virginia hockey player was killed by her ex-boyfriend in a fit of rage. The AP story, carried here, relates this:

CHARLOTTESVILLE, Va. - Describing a scene of violent rage, the Virginia lacrosse player accused of killing a member of the women's team told police he kicked in her bedroom door, shook her, and her head repeatedly hit the wall, according to a court document....

An affidavit for a search warrant said two people found Love, of Cockeysville, Md., face down in her bedroom early Monday morning, with a pool of blood on her pillow. There was a large bruise on her face and one eye was swollen shut, police said, and she was pronounced dead at the scene after attempts to revive her.

The suspect, 22-year-old George Huguely, of Chevy Chase, Md., has been arrested and charged with first-degree murder in the death of Yeardly Love, also 22.

The article includes this paragraph describing the response of Mr. Huguely's lawyer:

Huguely...appeared via videoconference from Albemarle-Charlottesville Regional Jail, wearing a gray-striped uniform. Afterward, his lawyer, Francis Lawrence, told reporters that Love's "death was not intended, but an accident with a tragic outcome."

So your girlfriend breaks up with you, your response is to kick down her door and bash her head in, and this is "an accident."

A couple of days ago, reader notablogger and our News Scan picked up the story that the American Board of Anesthesiologists has decided to revoke the certification of any member who participates in executing a murderer by lethal injection.

Nice try, gentlemen. Won't work. Do these people or their lawyers ever look at cases? Maybe not, but they should have a gander at this one, decided a year ago by the North Carolina Supreme Court.

Of course what this is really all about is trying to find some gimmick to make executions impossible -- i.e., to effectively abolish the death penalty without ever having to win the case for abolition with either the electorate or the judiciary.

The Elite used to rule by force. When the Revolutionary War made that plan more, uh, difficult, the Elite has gone to Plan B, namely, rule by bluster. As you would suspect, each has about the same probative value.

There is good news and bad news from the Supreme Court. (I know, the sun rises in the east).

The bad news, in my view, is that the Court's main doors will now be closed to the public. The Washington Postreports that, "as part of its $122 million modernization plan, the public will now enter the building on the plaza level, where a security checkpoint will make it easier to contain any risks."

Security is an undeniable priority in this day and time, so it's difficult to second guess the decision. Still, as Justices Ginsburg and Breyer noted, the open front doors had a symbolic value that I, for one, will miss.

In more cheerful news, over the weekend I attended the clerks reunion dinner for Justice Scalia. I am pleased to report that the Justice looks to be in good health and good spirits. It was interesting that he went out of his way to compliment Justice Sotomayor for her intelligence and work ethic. Perhaps it's that they're both New Yorkers from way back, but for whatever the reason, it fortified my tentative view that Sotomayor is not as scary, for Crime & Consequences purposes, as we might have feared.

There is good news and bad news from the Supreme Court. (I know, the sun rises in the east).

The bad news, in my view, is that the Court's main doors will now be closed to the public. The Washington Post reports that, "as part of its $122 million modernization plan, the public will now enter the building on the plaza level, where a security checkpoint will make it easier to contain any risks."

Security is an undeniable priority in this day and time, so it's difficult to second guess the decision. Still, as Justices Ginsburg and Beyer noted, the open front doors had a symbolic value that I, for one, will miss.

In more cheerful news, over the weekend I attended the clerk's reunion dinner for Justice Scalia. I am pleased to report that the Justice looks to be in good health and in a good mood. It was interesting that he went out of his way to compliment Justice Sotomayor for her intelligence and work ethic. Perhaps it's that they're both New Yorkers from way back, but for whatever the reason, it fortified my tentative view that Sotomayor is not as scary, from Crime & Consequences purposes, as we might have feared.

Repeat Felon Kills Cop in Detroit: In a scenario playing out in many cash-strapped states, a violent habitual felon on supervised release killed a Detroit police officer Monday in a shootout that wounded four others. AP writers Jeff Karoub and David Runk report that the suspect, 25-year-old Jason Gibson, has a history of confrontations with the police including a 2007 attempt to disarm an officer during a cocaine bust. He was on probation for that offense last November when he was arrested for carrying a concealed weapon. After two months in jail he was released on bail. The shooting occurred after officers entered a suspected drug house in response to a 911 call reporting gunshots. The slain officer, Brian Huff, was a 12-year veteran with a wife and a 10-year-old son. Detroit Police Chief Warren Evans told reporters, "The truth of the matter is, this guy fights with the police. If he was in jail, where I think he ought to be, we may not have had an officer killed today." This story from station WWJ reports, "The shooting death of officer Huff is leading to
renewed calls for the death penalty in Michigan."

Ban on Pot Clinics Upheld: A federal district judge has declined to suspend efforts by two Orange County, CA communities to close down medical marijuana clinics for violating federal law prohibiting the sale of a controlled substance. A story by Erika J. Ritchie and Ellyn Pak of the Orange County Register reports that in a request for a temporary injunction, four plaintiffs argued that bans on the clinics in Lake Forest and Costa Mesa violated their rights under the Americans With Disabilities Act. U.S. District Judge Andrew Guilford disagreed noting that "Marijuana is a Schedule 1 controlled substance under the Controlled Substances Act, and under that Act, it currently has no medical purpose."

Triple Murderer's Execution Date on Hold: Art Barnum of the Chicago Tribune reports that while a nominal execution date has been set for three-time murderer Edward Tenny, there are many years of appeals to come and the moratorium on the death penalty in Illinois is still in force. A Daily Herald story by Christy Gutowski reports that Tenny was sentenced for the 1992 robbery/murder of 24-year-old father of two, Jerry Weber, for the $6 in Weber's wallet. He was shot and killed after his van became stuck in the mud in a field where he was collecting rocks for his family's yard. Prior to his conviction for that murder, Tenny was convicted and sentenced to two life terms for the brutal 1993 home invasion murders of two widows. During the sentencing hearing, Tenny, who was wearing prison issues marking him as an escape risk, appeared unaffected as the judge rejected three dozen error claims by his defense attorney and set his execution date. The state's 10-year appeals process now begins. "Hopefully now the governor will do his job and lift the moratorium," said DuPage County State's Attorney Joseph Birkett.

Death penalty opponents are fond of saying how many other countries have abolished the penalty. That argument has even less probative value than the typical looking-abroad argument, though, because in many cases that decision was coerced. Western Europe forced Eastern European countries to abolish in order to join the big common market with the economic advantages that entails. Now Europe is reaching halfway around the world to impose its view in East Asia.

Taiwan recently ended a de facto moratorium and carried out four executions. The EU "high representative" issued a predictable statement meddling in Taiwan's business. Now Taiwan is worried that the EU might link the question of whether people from Taiwan can enter Europe without the hassle of getting visas (a visa waiver program) to the question of how that independent country chooses to punish its murderers. CNA has this story.

The U.S. needs something like the Monroe Doctrine to tell Europe to keep its mitts off. We don't go around telling independent countries they have to have capital punishment, and Europe has no more business telling them they can't have it.

"17 Caught in Search for Arizona Deputy's Attackers": Bob Christie of AP reports on the search for drug smugglers who shot and wounded an Arizona sheriff's deputy in a remote desert area south of Phoenix. Authorities captured 17 suspected illegal immigrants Saturday, including three who may have been involved in the shooting. Deputy Louie Puroll, 53, was patrolling near Interstate 8 when he discovered a stash of marijuana bales and five suspected smugglers. At least 30 shots were exchanged between the deputy and the suspected drug smugglers in an area that is a well-known smuggling corridor for drugs and illegal immigrants. The shooting came amid a growing national debate over Arizona's new law on illegal immigrants. Arizona recently passed the immigration law due to increasing concerns about violence, drug smugglers and illegal immigration drop houses. "The unsecured border poses a real threat and immediate danger," said U.S. Rep., Ann Kirkpatrick, a Democrat whose district includes part of the county where the recent shooting occurred. "The stakes are higher," sheriff's Lt. Tamatha Villar said. "As the violence increases on the border, as cartels continue to fight over land, and ownership of rights of land to move their drugs and people through, we're going to continue to see these and we're going to continue to see the violence escalate if we don't take swift action."

"California Loses Fight to End Prison Oversight": AP has this article regarding the legal battle to end federal oversight of California's prison health care system. The Schwarzenegger administration lost the fight on Friday after a three-judge panel of the Ninth U.S. Circuit Court of Appeals ruled that a federal judge can persist with a court-appointed receiver to improve inmate medical care, saying it was the least intrusive way to ensure prisoners' rights. The appeals court also denied the administration's request to stop the receiver's construction plans to increase the number of medical beds by 10,000, costing about $6 billion. Because of the increased costs, California has sought to end federal oversight of the state's prison system. The receiver has since responded with a new proposal to build two prison hospitals to house 3,400 inmates at a cost of $1.9 billion. Rachel Arrezola, a spokeswoman for Gov. Arnold Schwarzenegger, said the state will appeal the ruling to a larger panel of the appeals court in San Francisco.

Group to Punish Anesthesiologists who Play Role in Lethal Injections: Washington Post Staff Writer Bob Stein reports on the American Board of Anesthesiologists' decision to revoke the certification of any member who participates in executing a murderer by lethal injection. Revocation of certification would prevent an anesthesiologist from working in most hospitals. The American Medical Association has long opposed doctor involvement, but the anesthesiologists' group is the first to harshly penalize a health-care worker for abetting lethal injections. So far, no doctors have been disciplined, but the announcement will undoubtedly have a chilling effect. Many argue that doctors are not needed during the procedures, prison administrators should be allowed to administer the lethal injection themselves. "Some think it's an effective argument to say you need a doctor to do this," said Michael Rushford, President of the CJLF. "You don't need a doctor to do this. It's a counterfeit argument." For a contrary opinion on the medical ethics issue, see the article by Michael Keane, discussed here.

The First Circuit felon voting case, Simmons v. Galvin, was on the conference list for Friday. On Wednesday, the Ninth Circuit undercut the certiorari petition by taking its own felon voting case en banc, thereby eliminating (at least for now) the "circuit split" that was the best argument for the Supreme Court to take up the issue. See prior post.

In today's orders list, the Court asked for the views of the Solicitor General on the question. That kicks the can down the road for the Court, but it puts SG Kagan in a tight spot. If she is the nominee to succeed Justice Stevens, will she be submitting her opinion on this political hot potato right in the middle of her confirmation hearings? Ouch.

No law in modern history has met with as much resistance from federal judges as the key habeas reform of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). In 28 U.S.C. §2254(d), Congress told the lower federal courts that they do not have the same authority over state courts as the U.S. Supreme Court does. They cannot overturn the state judgment on habeas corpus merely because they would have decided the case the other way. So long as the state court applies the correct U.S. Supreme Court precedent within the broad range of reasonable disagreement, the state court decision stands.

But far too many federal judges just will not accept this law. The Lett case decided by the Supreme Court today involves a mistrial when a jury deadlocks. The Supreme Court precedent is rather amorphous, so the range of reasonable disagreement is rather broad. The Sixth Circuit had set up its own test with a more crystallized rule. It then declared the Michigan Supreme Court's decision to be unreasonable for failing to comply with the Sixth Circuit's interpretation of Supreme Court precedent. Wrong, wrong, wrong, wrong. That is exactly what Congress prohibited when it specified Supreme Court precedent as the "clearly established Federal law" that state courts must follow.